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Constitutional Petition No. D-584 of 1979, decided on 6th March, 1984.

---Constitution of Pakistan (1973), Art. 199--Pre-emption--Appeal- Counsel for parties after arguing at length finally conceding that impugned orders passed by Member, Board of Revenue and Commissioner be set aside and case be remanded to Commissioner/ Appellate Tribunal for determination of appeal afresh--Stand taken by parties reasonable and warranted by law--impugned orders set aside and case remanded accordingly.

---S.3--Constitution of Pakistan (1973), Art. 199--Question of limitation--Waiver of--Waiver of question of limitation, held not permissible even where period of limitation 'is prescribed by a special or a local law.--[Waiver].

Ahsan Ali and others v. District Judge and others P L D 1969 S C 167 rel.

---Para.25--Limitation Act (IX of 1908), Ss. 5 & 12--Constitution of Pakistan (1973), Art. 199--Suit for pre-emption--Condonation of delay- Sections 5 & 12, Limitation Act, 1908, held, applicable to appeals and revisions and not to suits.--[Appeal (civil)--Revision (civil].

Ismail Memon for Petitioners.

Muhammad Ali Shaikh and Muhammad Urs Baloch for Respondents Nos. 3 to 5.

Date of hearing: 6th March, 1984.

1. (a) The facts of the case briefly stated are that one Mst. Bibi Lal Khatoon by a registered sale-deed dated 6-11-1975 sold her undivided share (o.34 paisas) in various survey numbers including in Survey Nos. 62, 63, 90 admeasuring 18-36 Acres (hereinafter referred as the land in dispute) situated in Deh Pai Taluka Matli to the Petitioners. On 12-4-1976 the respondent No.3 claiming himself to be the tenant/Hart of the said land in dispute made an application under section 25(3)(d) of M.L.R.115 to enforce his first right of pre-emption. This application was filed before the Mukhtiarkar, who after hearing the parties by order passed on 10-6-1976, dismissed the same. Against the said order an appeal was filed before the Commissioner, who by order dated 2-9-1976 held that the Mukhtiarkar acted without jurisdiction in deciding the aforementioned case as the powers to entertain and decide pre-emption suits vested in the Deputy Commissioner under the Law Reforms (Amendment) Ordinance No. XX of 1976 which had come into force with effect from 19-5-1976. The case was accordingly remanded to the Deputy Commissioner, Badin, for disposal afresh according to law.

Before the Deputy Commissioner after the case was received on remand, the respondents Nos. 4 and 5 (Mir Muhammad and Noor Muhammad) for the: first time made an application on 19-1-1977 for their joinder as parties as they also claimed right of pre-emption as Harts/tenants alongwith their father, the original applicant. They were allowed to be joined 'as parties by an order passed on 14-11-1977.

(b) The Deputy Commissioner, as the original Court, thereafter heard the parties and held that the respondents No.4 and 5 (Mir Muhammad and Noor Muhammad) for the first time applied for pre-emption right by joining as intervenors in the pending case after about a lapse of 14 months, though the fact of the sale of the land to the Petitioners was in their knowledge. Their claim was thus rejected as barred by time and not worth consideration. The claim for pre-emption of all the three applicants (now respondents No.3 to 5) was also rejected on the ground that Haji S/o Qadir Bux (Respondent No.3) himself is a small Khatedar of agricultural land in the same Deh, that the names of all the three applicants (Respondents Nos. 3 to 5 in this Petition) are entered as Haris in Khasra Girdawari register in respect of the said land owned by Haji (the respondent No. 3) and that the disputed land remained uncultivated during the year 1975-76 i.e. the year of sale of the land in question to the petitioners.

The pre-emption case filed by the respondents Nos. 3 to 5 in the circumstances, was dismissed by the Deputy Commissioner by order passed on 17-4-1978.

(c) Against the above order, an appeal was preferred by the Respondents Nos. 3 to 5 before the Commissioner, Hyderabad Division, who framed the following three questions for determination:-

" (i) Whether the appellants are Haris of the disputed Survey Nos

(ii) Whether the appellants were Haris of the disputed S.Nos. during the crucial season i.e. Kharif 1975-76

(iii) Whether the appellants can even at this stage purchase the Survey Numbers in question by exercising their right of pre-emption, when they surrendered their right of pre-emption before Mukhtiarkar and Tribunal Matli "

Before the Commissioner, additional documents were produced which consisted of (i) site note of Mukhtiarkar Matli and (ii) copy of statement of one Ali Muhammad recorded by Mukhtiarkar in some other proceedings (to which the petitioners were not parties). These documents were relied in support of the plea that the respondents Nos.3 to 5 were Haris of the land in dispute.

The Commissioner by order passed on 23-9-1978 accepted the appeal and set aside the order passed by the Deputy Commissioner and directed that the present petitioners (purchasers) should sell the survey numbers in dispute to the respondents Nos. 3 to 5 and the price be fixed in accordance with rule 7(2) of the Sind Land Commission (Pre-emption) Rules, 1974.

(d) Against the above order revision application was filed before the Board of Revenue/ Respondent No.1 which however was dismissed by the order passed on 6-3-1979.

2. The above orders passed by the Commissioner as well as the Board of Revenue have been challenged in this Court by invoking the constitutional jurisdiction under Article 9 of P.C.O. of 1981.

3. At the hearing of the petition, learned Advocate for the petitioners challenged the orders passed by the respondents Nos.1 and 2, by raising the following grounds, amongst other:----

"(i) That the additional evidence was allowed to be produced at the appellate stage before the Respondent No. 2/Commissioner without any application making out any cause.

(ii) that the petitioners were not given any opportunity to show that the additional evidence was inadmissible or could not be relied upon, and that in any case they ought to have been allowed to lead evidence in rebuttal.

(iii) that the appellate tribunal omitted to notice that the claim of respondents Nos.4 and 5 for pre-emption was barred by time.

(iv) that the respondent No.1/the Board of Revenue acted against the law in applying section 25(9) of M.L.R. for purposes of condoning delay in institution of suit for pre-emption, whereas the said provisions of law made sections 5 and 12 of limitation applicable to appeals and revisions and not the suits.

4. The learned Advocates for the parties after arguing at length, finally conceded that the two impugned orders passed by the respondents Nos. l and 2 be set aside and case be remanded to the Appellate tribunal/ Commissioner for determination of the appeal afresh.

We are also of the view that the stand taken by the counsel for the parties is reasonable and is warranted by law. In view of the concession made by the learned counsel for parties as above, we would not like to go into details but with regard to question of limitation which was not considered by the Appellate Tribunal we may with advantage refer to the rule laid down in the case of Ahsan Ali and others v. District Judge and others P L D 1969 S C 167 wherein it was held:-

"A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law.

It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits."

In the above-cited case while accepting the appeal the case was remanded by Hon'ble Supreme Court to the Additional Settlement Commis sioner for disposal of the appeal "in accordance with law after giving the parties adequate opportunity of representing their respective cases and adducing evidence both on question of limitation as well as question of fraud".

The contention raised on behalf of the petitioner, that the Board of Revenue committed error of law in applying provisions of section 5 of the Limitation to the pre-emption suit, finds support from the language of section 25(9) of M.L.R. 115 (as amended.), which for sake of references is reproduced below:----

Section 25(9).

"In computing the limitation provided for in sub-paragraph (6) or sub-paragraph (7), the provisions of section 5 and section 12 of the Limitation Act, 1908 (IX of 1908), shall apply.

Explanation.--In this paragraph, "Collector", "Commissioner" and "Board of Revenue" have the meaning assigned to them in the West Pakistan Land Revenue Act, 1967 (W.P. Act XVII of 1967".

5. We may also note here that Mr. Muhammad Ismail Memon learned Advocate for the petitioner raised before us the plea that the pre-emption suit as originally instituted by the respondent No.3 and in which subsequently the respondents Nos. 4 and 5 were joined as parties plaintiffs, was even otherwise not maintainable as the two requisite Talabs were not made in accordance with the Muslim Law. Reliance was placed by the learned counsel on the case of Muhammad Khan v . Abdul Khaliq Khan P L D 1981 S C 155.

Since however the case is being remanded with the consent of the Advocates for the parties to the Commissioner/ the Appellate Tribunal, we would not like to make any observation which may prejudice any of the parties before the, relevant authorities/ tribunals.

6. In the circumstances discussed above, the impugned orders passed by the respondents Nos. 1 and 2 are set aside the case is remanded to the respondent No.2/the Commissioner, Hyderabad Division, for disposal of the appeal which shall be deemed to be pending. The parties would be given opportunity to lead evidence on the issues involved. The petitioners would also be at liberty to raise the question of limitation.

Finally we may observe that a request was made by the learned counsel for the parties that the Commissioner may be directed to decide the appeal at the earliest by giving preference to this case. We have considered this request and are of the opinion that the ends of justice would be served if the appeal is disposed of before the next cultivation season start, as the litigation is pending since 1976. We would, therefore, direct that the Appellate Tribunal would give preference to this case and decide the same within a period of four months.

M.Y.H. Case remanded.

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